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December 16, 2004

How to Prepare--or Object to--Day-in-the-Life Videos

The most recent pronouncement by the Illinois courts on day-in-the-life videos is Velarde v. Illinois Central R.R., No. 1-02-1859 (1st Dist., November 8, 2004). The case followed Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 579 N.E.2d 873 (1991) in holding that a day-in-the-life video was demonstrative evidence that was properly provided to defense counsel at the earliest opportunity, which happened to be just before trial. According to the court, “since the purpose of the video was to illustrate the evidence regarding [the injured party's] life at the time of trial, it would make little sense to record her activities months in advance.”

The court also entertained a defense argument that the video's probative value was outweighed by its possible prejudice. This seems an obvious way for defense lawyers to argue that a jury should not be allowed to view a day-in-the-life video. Though the court rejected the argument, its language contains a lesson for both the plaintiff and the defense:

Throughout the film, [the injured party] appears anxious and easily confused and she is frequently tearful. In our opinion, however, the film does not dwell on her discomfort. Additionally, the film seems to illustrate the impact of head trauma and possibly resulting medication on [the injured party's] life, consistent with witness testimony indicating, as examples, that [she] took medication prescribed by her neurologist, had difficulty sustaining attention, needed someone to "cue her in" and give reminders, could not think flexibly or find solutions to problems, could not manage utensils, and was frustrated, fearful, anxious and extremely depressed.” . . . “We conclude it is most improbable that the jury was unduly influenced by a film which shows [the injured party] engaging in commonplace activities in a manner that conformed with trial testimony about her injuries and disabilities.”

The lesson seems to be a day-in-the-life videos are least objectionable if they serve to visually depict damage testimony from experts and other witnesses.